Employers must provide a disabled individual with a reasonable accommodation of his or her disability in contrast to providing the accommodation preferred by the individual

Employers must provide a disabled individual with a reasonable accommodation of his or her disability in contrast to providing the accommodation preferred by the individual
2015 NY Slip Op 03936, Appellate Division, First Department

The Appellate Division agreed with Supreme Court’s finding that the City of New York as the employer [Employer] had demonstrated that it had engaged in a good faith interactive process through which it had provided Complainant with a reasonable accommodation to address her vision and reading disabilities.

However, said the court, neither the New York State’s Human Rights Law [Executive Law § 296] nor New York City’s Administrative Code [Administrative Code of City of NY § 8-107] requires that an employer provide a disabled individual with the specific accommodation he or she preferred, citing Pimentel v Citibank, 29 AD3d 141, leave to appeal denied, 7 NY3d 707.

Further, said the Appellate Division, Employer had established that the Complainant’s preferred additional accommodation would not have addressed the non-visual disabilities that were impacting her job performance and preventing her from satisfying the essential requisites of her job.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03936.htm

A requests for reconsideration of a final administrative decision does not toll the running of the Statute of Limitations

A request for reconsideration of a final administrative decision does not toll the running of the Statute of Limitations

2015 NY Slip Op 03929, Appellate Division, First Department

In 2006 the New York City Teachers' Retirement System (TRS) calculated a teacher’s [Retiree] total service credit and found her to be ineligible for an early retirement incentive (ERI) program.

In 2013 Retiree, after making multiple unsuccessful efforts to get TRS to rectify its allegedly erroneous determination, filed an Article 78 petition seeking a court order directing TRS to “correct” its decision regarding Retiree’s eligibility for the ERI.

Supreme Court dismissed Retiree’s petition  challenging TRS's calculation of her total service credit and its determination finding her ineligible for the ERI program as time barred. The Appellate Division agreed with Supreme Court’s ruling.

The Appellate Division said that TRS's determination became final and binding for statute of limitations purposes upon Retiree’s receipt of TRS's letter dated September 15, 2006 calculating her total service credit and explaining that she was ineligible to participate in the ERI program. Retiree did not dispute her having received this letter within five days after it was mailed on September 15, 2006. Further, said the court, there is no evidence in the record to substantiate Retiree’s claims that TRS misled her or undermined the “finality of the letter.”

The Appellate Division explained that Retiree’s many efforts to get TRS to rectify its purported error were, in effect, “requests for reconsideration, which do not serve to toll the statute of limitations,” citing Cauldwest Realty Corp. v City of New York, 160 AD2d 489. Thus, said the court, because Retiree commenced her Article 78 proceeding in 2013, well beyond the four-month statute of limitations, her challenge was time-barred.

Addressing another claim advanced by Retiree, credit for “uncompensated annual leave and cumulative absent reserve time” allegedly withheld by the Department of Education of the City of New York (DOE), the Appellate Division said Retiree’s claim was barred by the doctrine of laches  as she had waited more than 10 years after she retired from her employment with DOE to demand such relief, and Retiree provided no excuse for the delay. Laches is typically defined as "an unreasonable delay by the plaintiff in bringing the claim."

Further, said the court, under these circumstances, DOE was not required to show that it was prejudiced by Retiree's delay in bringing her claim.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03929.htm

Public pension reform effort by the Illinois State Legislature ruled unconstitutional by the Supreme Court of Illinois

Public pension reform effort by the Illinois State Legislature ruled unconstitutional by the Supreme Court of Illinois

In re Pension Reform Litigation, [Doris Heaton, et al,] v Pat Quinn, Governor, State of Illinois, et al, Supreme Court of Illinois, 2015 IL Docket 118585,

In this action the plaintiff contended the Act amending Illinois Pension Code (40 ILCS 5/1-101 et seq.) by reducing retirement annuity benefits for individuals who first became members of four of Illinois’ five State-funded pension systems prior to January 1, 2011 was unconstitutional. Members of the retirement systems affected by Public Act 98-599 and groups representing those members brought five separate actions challenging the validity of the new law on the grounds that it violated numerous provisions of the Illinois Constitution of 1970, including Article XIII, section 5 (Ill. Const. 1970, Art. XIII, § 5), popularly known as the Pension Protection Clause.

The Circuit Court declared Public Act 98-599 to be unconstitutional in its entirety as a violation of the so-called Pension Protection Clause, and permanently enjoined its enforcement. The court rejected Illinois’ claim that “the Act could be upheld, notwithstanding its violation of the Pension Protection Clause, based on the State’s reserved sovereign powers"

As the Circuit Court’s ruling invalidated a statute of the State of Illinois, Illinois could appeal directly to the Illinois Supreme Court.

Illinois has five State-funded Retirement Systems [Systems] for public employees, which Systems provide traditional defined benefit plans under which members earn specific benefits based on their years of service, income and age. All five Systems are subject to the pension protection clause set out in Illinois’ State Constitution, which provides that “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired” [Ill. Const. 1970, art. XIII, § 5].

Concern over ongoing funding deficiencies and the attendant threat to the security of retirees in public pension systems eventually led directly to adoption of Article XIII, section 5, the Pension Protection Clause, when the new Constitution was adopted in 1970 inresponse to “the poor job governmental entities had done in meeting their pension obligations over time” whereby during the past twenty-two “the unfunded accrued liabilities of these pension plans in Illinois have increased from about $359,000,000 to almost $2,500,000,000, and the unfunded accrued liabilities are real and are not theoretical obligations based upon service already rendered.”

The advocates for adopting Article XIII, [see Record of Proceedings, Sixth Illinois Constitutional Convention 2925 (statements of Delegate Green)] argued that “Our language is that language that is in the New York Constitution which was adopted in 1938, really under a similar circumstance. In 1938 you were about at the end of the Depression, but there was a great consideration on the part of the New York General Assembly to really cut out some of the money that they were giving to the pension programs in New York; and it was for this reason that the New York Constitution adopted the language that we are suggesting. Since that time, the state of New York the pension funds for public employees have been fully funded, and so I think we have good reason to believe that this type of language will be a mandate to the General Assembly to do something which they have not previously done in some twenty-two years.”

After a scholarly analysis of the issues relevant to this case, the Supreme Court sustained the Circuit Court’s conclusion that Public Act 98-599 was void and unenforceable in its entirety, thereby holding that the Act was unconstitutional and sustained the Circuit Court’s “permanently enjoining its enforcement.”

The decision is posted on the Internet at:

http://www.illinoiscourts.gov/Opinions/SupremeCourt/2015/118585.pdf

New York State’s Human Rights Law protects unpaid interns in the public and private sectors from unlawful discrimination

New York State’s Human Rights Law protects unpaid interns in the public and private sectors from unlawful discrimination

Source: NYS Division of Human Rights

New York State Division of Human Rights Commissioner Helen Diane Foster has issued a press release reminding public and private sector employers in New York State that interns are protected from discrimination in the workplace under the New York State Human Rights Law. Foster indicated that “Unpaid interns are protected from harassment and other unlawful discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status. “
 
Commissioner Foster said that “The Human Rights Law defines “intern” as a person who performs work for an employer for the purpose of training under certain circumstances. Among them, that the employer is not committed to hire the person performing the work at the conclusion of the internship and that the person performing the work agrees with the employer that they are not entitled to wages for the work performed.  The work performed by the intern is to provide or supplement training that may enhance the intern’s "employability," provide experience for the intern’s benefit, be performed under close supervision of existing staff and not displace regular employees. If an individual is called an ‘intern’ but paid, that person will likely be considered a regular employee under the Human Rights Law.”
 
These provisions explicitly protect interns from sexual harassment, which under the Human Rights Law is considered a form of sex discrimination, as well as other forms of harassment
 
For their part, employers cannot discriminate against interns in selection, retention or terms, conditions and privileges of the internship or when advertising for the internship. It is also unlawful for employers to discriminate against pregnant interns or retaliate against an intern for opposing discriminatory behavior or for filing a complaint.
 
The Human Rights Law prohibits discrimination in employment, housing, credit, and other jurisdictions, based on age, race, national origin, sex, sexual orientation, marital status, disability, military status, and other specified classes.

Complaints with the Division must be filed within one year of the most recent incident of discrimination. For more information about the law and the work of the agency, please visit the Division of Human Rights’ website at www.dhr.ny.gov.